Ruling dismays vets' supporters, Kan. lawmakers

FILE PHOTO: A member of the Westboro Baptist Church protests outside the funeral of Peter Wagler in Hutchinson last February. PHOTO BY TRAVIS HEYING, The Wichita Eagle (April 3, 2006)
FILE PHOTO: A member of the Westboro Baptist Church protests outside the funeral of Peter Wagler in Hutchinson last February. PHOTO BY TRAVIS HEYING, The Wichita Eagle (April 3, 2006)

Eric Nettleton couldn't believe what he saw outside a Topeka church one day in 2004.

Westboro Baptist Church members were dancing and singing and brandishing hateful signs.

Nettleton, an Army soldier from Wichita who had just returned from a tour in Iraq, was appalled as he rode past in a car with his family.

"He wanted to confront them and reason with them," said his father, James, "but he decided it wouldn't do any good. He was really upset by it."

In January, Eric died while fighting in Afghanistan.

And Westboro members picketed his funeral at All Saints Catholic Church in Wichita.

On Wednesday, the U.S. Supreme Court ruled that the Topeka church is exercising its right to free speech at such protests, despite the pain it inflicts.

"We cannot react to that pain by punishing the speaker," Chief Justice John Roberts Jr. wrote in his majority opinion.

The decision left James Nettleton dismayed.

"I feel they probably made the wrong decision," he said of the eight court members who voted in the majority, "but I know they have to uphold the Constitution, and that's free speech for everyone whether you are an American Nazi or a Westboro Baptist Church member."

"My son died fighting for the right to let them do what they do."

'Morally wrong'

Eric's family did not see the protest at his funeral because of the makeshift shield of American flags, motorcycles and people that the Patriot Guard established between the church and the protesters.

The guard, founded in Mulvane in 2005, provides these shields at the invitation of soldiers' families who want to be protected from seeing what Eric Nettleton saw in Topeka the year before.

Patriot Guard co-founder Terry Houck was not pleased by the court's ruling.

The guard has tried since it was founded to get city, state and federal lawmakers to create more stringent rules against the funeral protests, he said.

"It just doesn't make sense to allow it," Houck said. "I do understand their decision on our First Amendment rights; however, it is morally wrong and it is spiritually wrong, and all of us who stand together at these funerals disagree that a small group of fanatics can hide behind a false religion and continue to inflict emotional abuse as those families bury their loved ones."

Veterans found it hard to square the ruling with the constitutional right that they swore to protect.

"We fought for the right to freedom of speech, but we need to strike a balance between protecting free speech and protecting grieving families," said Paul Rieckhoff, executive director of the Iraq and Afghanistan Veterans of America, a nonpartisan support group.

'Hold your nose'

First Amendment scholars, meanwhile, shrugged at the decision, labeling it conventional and not unexpected.

"The facts are so distasteful, the question was, was the court going to find some way to silence (the church protesters) because of the complete outrageousness of their actions," said Stuart Benjamin, who teaches constitutional law at Duke University Law School.

But it didn't.

"What people have to realize is, the time we need free speech is when the speech is really unpleasant," said Susan Low Bloch, a constitutional scholar at the Georgetown University Law Center. "You often have to hold your nose and say, this is what we have to put up with to make sure we have the space to have a discussion. It's going to involve protecting some really ugly speech."

Funeral privacy laws

More than 40 states, including Kansas, have enacted funeral protest laws.

"The court made clear that its decision today does not disturb the funeral privacy laws enacted in many states that create a zone of privacy in which bereaved families may grieve," said Kansas Attorney General Derek Schmidt. "We will continue to defend vigorously the constitutionality of the Kansas Funeral Privacy Act if and when it is challenged."

The Kansas law prohibits a protest within 150 feet of the entrance or exit where a funeral is being held. While there is nothing in the court's ruling that would affect this buffer zone, the ruling would make it more difficult —though not necessarily impossible — for a Kansas family to win damages by suing Westboro's Phelps family for emotional distress, said former Rep. Raj Goyle, a Democrat who helped craft the 2008 measure.

The Supreme Court also rejected Maryland law's assertion that funeral attendees are a "captive audience," which would have lowered the legal bar for taking action against their activities. The same term is used in the Kansas statute to justify efforts to regulate the Phelpses' protests.

Overall, Goyle said, "I'm certainly disappointed in the court's treatment of the outrageous and despicable speech and conduct by the Phelps family."

Margie Phelps, an attorney and Westboro church member who argued the case before the high court, said that she and others, including the American Civil Liberties Union — which sided with Westboro Baptist — will aggressively challenge the states and localities that have adopted funeral protest laws.

"All of those are ill-designed and completely unconstitutional," Phelps said. "There's going to be all sorts of appealing."

Reflection on Kansas

News of the Supreme Court decision landed hard in the Kansas Legislature, where lawmakers have tried for years to come up with a constitutional way to rein in the Phelpses.

"I'm extremely disappointed," said Sen. Jean Schodorf, R-Wichita, a member of the Senate Judiciary Committee who helped draft an early state law that was struck down. "No matter how we tried to write it, there was a question whether it could be done constitutionally."

The Phelps family reflects badly on the state, she said.

"Kansas has become known as the home of the Phelpses," Schodorf said. "These people are hurting the parents of soldiers, the families of soldiers. They really need to look into their hearts and figure out why they are doing this."

Pastor John Henry of Central Community Church in west Wichita, the site of the funeral for Spc. Tom Moffitt, 21, a Wichita soldier who was killed Oct. 23 in southeastern Afghanistan, said that although the Supreme Court may have ruled correctly on the freedom-of-speech issue, the biggest problem with the Phelpses is the way they misrepresent Jesus Christ.

"For people who claim Christianity and anything to do with Christ to be so mean is out of character for who he was and what he stood for," Henry said.

The Phelpses have picketed at the church during Sunday morning services because they think Henry isn't hard enough on homosexuals, he said. They come out screaming obscenities and flashing obscene signs.

"It's not who we are as Americans. We're much better than that," Henry said.

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